Laska and Rodgers

[2018] FCCA 1653

FEDERAL CIRCUIT COURT OF AUSTRALIA

LASKA & RODGERS [2018] FCCA 1653

Catchwords:
FAMILY LAW – Parenting – best interests of the child – reduction in father’s time with child in circumstances where child has particular needs and health issues.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MR LASKA

Respondent: MS RODGERS

File Number: MLC 3146 of 2018

Judgment of: Judge Mercuri

Hearing date: 15 June 2018

Date of Last Submission: 15 June 2018

Delivered at: Melbourne

Delivered on: 15 June 2018

REPRESENTATION

Counsel for the applicant: Mr E Hall

Solicitors for the applicant: RNG Lawyers

Counsel for the respondent: Ms D Hannan

Solicitors for the respondent: Robinson Gill

Counsel for the Independent Children’s Lawyer: Mr N Eidelson

Solicitors for the Independent Children’s Lawyer: Altavilla Family Law

ORDERS

1. All extant applications be adjourned to 7 November 2018 at 9:30am for mention.

2. Until further order, paragraph 3 of the interim orders made on 30 April 2018 be suspended.

3. Until further order, the father spend time and communicate with the child [X] born 2006 (“the child”):

   (a)from 1:00pm until 5:00pm each Sunday; and

   (b)as otherwise agreed between the parties in writing.

4. Until further order, the mother and father continue to facilitate the child’s attendance upon his psychologist Ms J and each parent may obtain feedback and advice from her regarding the child’s care, welfare and development.

5. Ms J be provided with a copy of Dr B’s family report dated 26 February 2018.

6. Each parent forthwith enrol in and complete a post separation parenting course and provide a certificate of completion to the other party.

7. Until further order, each party and their servants and agents be and are hereby restrained by injunction from:

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent; and

   (b)discussing these proceedings

   to or in the presence or hearing of the said child and from permitting any other person so to do.

8. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Laska & Rodgers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3146 of 2018

MR LASKA

Applicant

And

MS RODGERS

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application in a case filed by the mother in respect of the time that the child [X] born 2006 (“[X]”) will spend with his father.  [X] is a child who is almost 12 years old. 

3. The background to this matter is briefly as follows.  The parties met in 2001 and commenced living together in 2008.  They married on 2009 and separated on 5 July 2014, and were ultimately divorced on 27 January 2016.  [X] is the only child of the relationship. 

4. The mother obtained an intervention order against the father naming both herself and [X] as protected persons on 7 December 2017, and that intervention order was granted without admission and permitted the father to spend time with [X] if permitted by a family law court order or written parenting agreement. 

5. The father initiated proceedings in this Court in relation to time with [X] in March 2018. 

6. It is common ground that [X] has been diagnosed with Autism Spectrum Disorder. The mother also claims that [X] has suffered from a range of other medical conditions, including anxiety and bedwetting, which she says have reappeared after some resolution.

7. The father’s evidence as to his time spend arrangements with [X] post-separation are set out in his affidavit filed 23 March 2018. At paragraph 11, he says that things were essentially progressing well until about September 2017 when [X]’s attitude started to change towards him, although he did not understand why. 

8. It is common ground, as I have said, that the mother obtained an intervention order against the father in October 2017.  Between October 2017 and January 2018, the father did not spend any time with [X].  Then, between January 2018 and March 2018, he spent some but very minimal time with [X]. 

9. The parties agreed to obtain a family report from Dr B prior to these proceedings commencing, and that report was provided in February 2018.  The mother did not agree to implement Dr B’s recommendations, which resulted in the father essentially issuing these proceedings. 

10. The mother’s evidence as set out in her affidavit filed 26 April 2018 is that after an incident in October 2017 which led to her obtaining the intervention order, [X] put him on a mental health plan and [X] started to attend upon a psychologist.  The mother says that this has assisted [X] and that she has observed a reduction in his anxiety.

11. Procedurally, the matter first came before me on 30 April 2018, at which time I made orders that were consistent with the recommendations of Dr B; for time to recommence with the father on a gradual basis, initially for four hours each Sunday, and then increasing to a whole day from 9:00am till 7.30pm each Sunday commencing on 9 June 2018. 

12. The father in his submissions today, made reference to various comments in the report prepared by Dr B which go to [X]’s relationship with his father, the father’s general attitude and demeanour as well as concerns about the mother’s behaviour and lack of support in facilitating [X]’s relationship with his father.  I will not repeat those comments, but I have had regard to Dr B’s report in its entirety.

13. The parties have both filed material and made oral submissions that time has progressed with the father and [X] as provided for in the interim orders.  The father says that his time with [X] has been positive and unremarkable.  The mother says that she has observed an increase in [X]’s anxiety and a return of some of his other medical concerns.

14. Obviously at an interim hearing, it is not possible to test that evidence.  The mother says however, that following time with the father on 20 May 2018, [X] came home and was extremely distressed, and the mother became concerned enough to take him to his GP the following day.  She has annexed to her affidavit filed 12 June 2018 a note from her GP, and as a result of that consultation, the GP referred [X] to his psychologist for an urgent appointment, which occurred some days later. 

15. The mother has also annexed to her affidavit a letter from that psychologist dated 25 May 2018. Both the note from the GP and the note from the psychologist refer not only to a history taken from the mother about [X]’s condition and presentation, but also a history taken from [X] himself. I refer specifically to the letter from [X] where he notes that both [X] and his mother report that his feelings of anxiety and depression increase in intensity leading up to his visits with his father, and then subside about two to three days later. 

16. Similarly, in the psychologist’s letter dated 25 May 2018, it is noted that [X] himself reports two things which provoke elevated anxiety in regard to his access visits.  One is his father’s expression of anger and the other is the father’s reported negative remarks concerning the mother and occasionally the older brother.

17. The psychologist has in her letter recommended a reduction in time between [X] and his father to three hours per week and made comment about how that time might be spent. 

18. Counsel for the Independent Children’s Lawyer advised the court that the Independent Children’s Lawyer has spoken with the psychologist and confirmed that it is her view that time with the father should be adjusted for [X]’s benefit.

19. The father is seeking various orders as set out in the minute of interim orders handed up to the Court by his counsel.  In essence, the key issue in dispute in this case is whether the time that [X] spends with his father continues for a whole day, or is reduced to four hours.  The Independent Children’s Lawyer and the mother are seeking that the father’s time be reduced to four hours each Sunday. 

20. It goes without saying that in making orders in parenting matters, the Court is guided by the best interests of the child. It also goes without saying that in an interim hearing such as this, it is not possible to test the evidence that each of the parties have put before the Court in their affidavit material.  In this case, the main concern is the fact that the child [X] has particular needs arising from a variety of conditions that he suffers from. 

21. There is a dispute clearly in this case between the parties as to both the manifestations of [X]’s condition and implicitly, its cause.  However, having regard to the evidence of [X] and treating psychologist as it is, and noting that it is not on affidavit and is simply in the form of a note and a letter attached to the mother’s affidavit material, the Court must act protectively. 

22. To that end, I am persuaded that it is appropriate to adjust the interim orders that were made on 30 April 2018 in the terms proposed by the Independent Children’s Lawyer and agreed to by the mother. 

23. In taking this approach, I have not formed any views as to whether the father has, in fact, done anything which has caused this reaction in [X], and note his submissions and the reference in Dr B’s report that it is, in fact, the mother’s behaviour which may have a part to play in that. 

24. I am not making any findings as to what the cause of [X]’s reaction is, but I am satisfied to the requisite standard required for the purposes of today’s proceedings that [X] is not coping with the current arrangement and that an adjustment is required.  It is clear from the material that [X] is exhibiting some anxiety and related behaviours, and it is important to give due weight to the recommendations made by his treating psychologist, who has been seeing him since October of last year.

25. Before turning to the orders that I propose making, I also note that the father seeks a final hearing date today, whereas the Independent Children’s Lawyer and the mother are seeking that the matter be adjourned for a further mention to allow some time for the new arrangements to settle into place. 

26. In my view, the appropriate course is to put in place an arrangement where the parents work together with [X]’s treating psychologist, that they both undertake post-separation parenting programs with a view to developing a more positive and constructive co-parenting relationship in the best interests of their son. 

27. I also note that in this case, [X] is lucky to have two parents who clearly both care very much for him, want to spend time with him and support him, but he is a child who does have certain needs that do need to be addressed.  To that end, I am minded to make orders 1, 2 and 4 that were sought by the father.  I do not think there is any objection to those orders being made by the mother or by the Independent Children’s Lawyer.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 15 June 2018